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392 U.S. 514

88 S.Ct. 2145

20 L.Ed.2d 1254

Leroy POWELL, Appellant,

v.STATE OF TEXAS.

 No. 405.

 Argued March 7, 1968.

 Decided June 17, 1968.

 Rehearing Denied Oct. 14, 1968.

See 89 U.S. 65.

[Syllabus from pages 514-516 intentionally omitted]

Don L. Davis, Austin, Tex., for appellant, pro hac vice, by special leave of 

Court.

David Robinson, Jr., Washington, D.C., for appellee.

Peter Barton Hutt, Washington, D.C., for American Civil Liberties Union

et al., amicus curiae.

Mr. Justice MARSHALL announced the judgment of the Court and

delivered an opinion in which THE CHIEF JUSTICE, Mr. Justice

BLACK, and Mr. Justice HARLAN join.

1 In late December 1966, appellant was arrested and charged with being found in

a state of intoxication in a public place, in violation of Vernon's Ann.Texas

Penal Code, Art. 477 (1952), which reads as follows:

2 'Whoever shall get drunk or be found in a state of intoxication in any public

 place, or at any private house except his own, shall be fined not exceeding onehundred dollars.'

3 Appellant was tried in the Corporation Court of Austin, Texas, found guilty,

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I.

and fined $20. He appealed to the County Court at Law No. 1 of Travis County,

Texas, where a trial de novo was held. His counsel urged that appellant was

'afflicted with the disease of chronic alcoholism,' that 'his appearance in public

(while drunk was) * * * not of his own volition,' and therefore that to punish

him criminally for that conduct would be cruel and unusual, in violation of the

Eighth and Fourteenth Amendments to the United States Constitution.

4 The trial judge in the county court, sitting without a jury, made certain findings

of fact, infra, at 521, but ruled as a matter of law that chronic alcoholism was

not a defense to the charge. He found appellant guilty, and fined him $50.

There being no further right to appeal within the Texas judicial system,1

appellant appealed to this Court; we noted probable jurisdiction. 389 U.S. 810,

88 S.Ct. 97, 19 L.Ed.2d 62 (1967).

5 The principal testimony was that of Dr. David Wade, a Fellow of the American

Medical Association, duly certificated in psychiatry. His testimony consumed a

total of 17 pages in the trial transcript. Five of those pages were taken up with a

recitation of Dr. Wade's qualifications. In the next 12 pages Dr. Wade was

examined by appellant's counsel, cross-examined by the State, and re-examined

 by the defense, and those 12 pages contain virtually all the material developed

at trial which is relevant to the constitutional issue we face here. Dr. Wadesketched the outlines of the 'disease' concept of alcoholism; noted that there is

no generally accepted definition of 'alcoholism'; alluded to the ongoing debate

within the medical profession over whether alcohol is actually physically

'addicting' or merely psychologically 'habituating'; and concluded that in either 

case a 'chronic alcoholic' is an 'involuntary drinker,' who is 'powerless not to

drink,' and who 'loses his self-control over his drinking.' He testified that he had

examined appellant, and that appellant is a 'chronic alcoholic,' who 'by the time

he has reached (the state of intoxication) * * * is not able to control his behavior, and (who) * * * has reached this point because he has an

uncontrollable compulsion to drink.' Dr. Wade also responded in the negative to

the question whether appellant has 'the willpower to resist the constant

excessive consumption of alcohol.' He added that in his opinion jailing

appellant without medical attention would operate neither to rehabilitate him

nor to lessen his desire for alcohol.

6 On cross-examination, Dr. Wade admitted that when appellant was sober heknew the difference between right and wrong, and he responded affirmatively

to the question whether appellant's act in taking the first drink in any given

instance when he was sober was a 'voluntary exercise of his will.' Qualifying

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his answer, Dr. Wade stated that 'these individuals have a compulsion, and this

compulsion, while not completely overpowering, is a very strong influence, an

exceedingly strong influence, and this compulsion coupled with the firm belief 

in their mind that they are going to be able to handle it from now on causes

their judgment to be somewhat clouded.' Appellant testified concerning the

history of his drinking problem. He reviewed his many arrests for drunkenness;

testified that he was unable to stop drinking; stated that when he wasintoxicated he had no control over his actions and could not remember them

later, but that he did not become violent; and admitted that he did not remember 

his arrest on the occasion for which he was being tried. On cross-examination,

appellant admitted that he had had one drink on the morning of the trial and had

 been able to discontinue drinking. In relevant part, the cross-examination went

as follows:

7 'Q. You took that one at eight o'clock because you wanted to drink?

8 'A. Yes, sir.

9 'Q. And you knew that if you drank it, you could keep on drinking and get

drunk?

10 'A. Well, I was supposed to be here on trial, and I didn't take but that one drink.

11 'Q. You knew you had to be here this afternoon, but this morning you took one

drink and then you knew that you couldn't afford to drink any more and come

to court; is that right?

12 'A. Yes, sir, that's right.

13 'Q. So you exercised your will power and kept from drinking anything today

except that one drink?

14 'A. Yes, sir, that's right.

15 'Q. Because you knew what you would do if you kept drinking that you would

finally pass out or be picked up?

16 'A. Yes, sir.

17 'Q. And you didn't want that to happen to you today?

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18 'A. No, sir.

19 'Q. Not today?

20 'A. No, sir.

21 'Q. So you only had one drink today?

22 'A. Yes, sir.'

23 On redirect examination, appellant's lawyer elicited the following:

24 'Q. Leroy, isn't the real reason why you just had one drink today because you

 just had enough money to buy one drink?

25 'A. Well, that was just give to me.

26 'Q. In other words, you didn't have any money with which you could buy any

drinks yourself?

27 'A. No, sir, that was give to me.

28 'Q. And that's really what controlled the amount you drank this morning, isn't

it?

29 'A. Yes, sir.

30 'Q. Leroy, when you start drinking, do you have any control over how manydrinks you can take?

31 'A. No, sir.'

32 Evidence in the case then closed. The State made no effort to obtain expert

 psychiatric testimony of its own, or even to explore with appellant's witness the

question of appellant's power to control the frequency, timing, and location of 

his drinking bouts, or the substantial disagreement within the medical profession concerning the nature of the disease, the efficacy of treatment and

the prerequisites for effective treatment. It did nothing to examine or illuminate

what Dr. Wade might have meant by his reference to a 'compulsion' which was

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'not completely overpowering,' but which was 'an exceedingly strong influence,'

or to inquire into the question of the proper role of such a 'compulsion' in

constitutional adjudication. Instead, the State contented itself with a brief 

argument that appellant had no defense to the charge because he 'is legally sane

and knows the difference between right and wrong.' Following this abbreviated

exposition of the problem before it, the trial court indicated its intention to

disallow appellant's claimed defense of 'chronic alcoholism.' Thereupondefense counsel submitted, and the trial court entered, the following 'findings of 

fact':

33 '(1) That chronic alcoholism is a disease which destroys the afflicted person's

will power to resist the constant, excessive consumption of alcohol.

34 '(2) That a chronic alcoholic does not appear in public by his own volition but

under a compulsion symptomatic of the disease of chronic alcoholism.

35 '(3) That Leroy Powell, defendant herein, is a chronic alcoholic who is afflicted

with the disease of chronic alcoholism.'

36 Whatever else may be said of them, those are not 'findings of fact' in any

recognizable, traditional sense in which that term has been used in a court of 

law; they are the premises of a syllogism transparently designed to bring thiscase within the scope of this Court's opinion in Robinson v. State of California,

370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Nonetheless, the dissent

would have us adopt these 'findings' without critical examination; it would use

them as the basis for a constitutional holding that 'a person may not be

 punished if the condition essential to constitute the defined crime is part of the

 pattern of his disease and is occasioned by a compulsion symptomatic of the

disease.' Post, at 569.

37 The difficulty with that position, as we shall show, is that it goes much too far 

on the basis of too little knowledge. In the first place, the record in this case is

utterly inadequate to permit the sort of informed and responsible adjudication

which alone can support the announcement of an important and wide-ranging

new constitutional principle. We know very little about the circumstances

surrounding the drinking bout which resulted in this conviction, or about Leroy

Powell's drinking problem, or indeed about alcoholism itself. The trial hardly

reflects the sharp legal and evidentiary clash between fully prepared adversarylitigants which is traditionally expected in major constitutional cases. The State

 put on only one witness, the arresting officer. The defense put on three—a

 policeman who testified to appellant's long history of arrests for public

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drunkenness, the psychiatrist, and appellant himself.

38 Furthermore, the inescapable fact in that there is no agreement among members

of the medical profession about what it means to say that 'alcoholism' is a

'disease.' One of the principal works in this field states that the major difficulty

in articulating a 'disease concept of alcoholism' is that 'alcoholism has too many

definitions and disease has practically none.'2 This same author concludes that'a disease is what the medical profession recognizes as such.'3 In other words,

there is widespread agreement today that 'alcoholism' is a 'disease,' for the

simple reason that the medical profession has concluded that it should attempt

to treat those who have drinking problems. There the agreement stops. Debate

rages within the medical profession as to whether 'alcoholism' is a separate

'disease' in any meaningful biochemical, physiological or psychological sense,

or whether it represents one peculiar manifestation in some individuals of 

underlying psychiatric disorders.4

39  Nor is there any substantial consensus as to the 'manifestations of alcoholism.'

E. M. Jellinek, one of the outstanding authorities on the subject, identifies five

different types of alcoholics which predominate in the United States, and these

types display a broad range of different and occasionally inconsistent

symptoms.5 Moreover, wholly distinct types, relatively rare in this country,

 predominate in nations with different cultural attitudes regarding the

consumption of alcohol.6 Even if we limit our consideration to the range of alcoholic symptoms more typically found in this country, there is substantial

disagreement as to the manifestations of the 'disease' called 'alcoholism.'

Jellinek, for example, considers that only two of his five alcoholic types can

truly be said to be suffering from 'alcoholism' as a 'disease,' because only these

two types attain what he believes to be the requisite degree of physiological

dependence on alcohol.7 He applies the label 'gamma alcoholism' to 'that

species of alcoholism in which (1) acquired increased tissue tolerance to

alcohol, (2) adaptive cell metabolism * * *, (3) withdrawal symptoms and'craving,' i.e., physical dependence, and (4) loss of control are involved.'8 A

'delta' alcoholic, on the other hand, 'shows the first three characteristics of 

gamma alcoholism as well as a less marked form of the fourth characteristic— 

that is, instead of loss of control there is inability to abstain.'9 Other authorities

approach the problems of classification in an entirely different manner and,

taking account of the large role which psychosocial factors seem to play in

'problem drinking,' define the 'disease' in terms of the earliest identifiable

manifestations of any sort of abnormality in drinking patterns.10

40 Dr. Wade appears to have testified about appellant's 'chronic alcoholism' in

terms similar to Jellinek's 'gamma' and 'delta' types, for these types are largely

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defined, in their later stages, in terms of a strong compulsion to drink,

 physiological dependence and an inability to abstain from drinking. No attempt

was made in the court below, of course, to determine whether Leroy Powell

could in fact properly be diagnosed as a 'gamma' or 'delta' alcoholic in Jellinek's

terms. The focus at the trial, and in the dissent here, has been exclusively upon

the factors of loss of control and inability to abstain. Assuming that it makes

sense to compartmentalize in this manner the diagnosis of such a formless'disease,' tremendous gaps in our knowledge remain, which the record in this

case does nothing to fill.

41 The trial court's 'finding' that Powell 'is afflicted with the disease of chronic

alcoholism,' which 'destroys the afflicted person's will power to resist the

constant, excessive consumption of alcohol' covers a multitude of sins. Dr.

Wade's testimony that appellant suffered from a compulsion which was an

'exceedingly strong influence,' but which was 'not completely overpowering' isat least more carefully stated, if no less mystifying. Jellinek insists that

conceptual clarity can only be achieved by distinguishing carefully between

'loss of control' once an individual has commenced to drink and 'inability to

abstain' from drinking in the first place.11 Presumably a person would have to

display both characteristics in order to make out a constitutional defense, should

one be recognized. Yet the 'findings' of the trial court utterly fail to make this

crucial distinction, and there is serious question whether the record can be read

to support a finding of either loss of control or inability to abstain.

42 Dr. Wade did testify that once appellant began drinking he appeared to have no

control over the amount of alcohol he finally ingested. Appellant's own

testimony concerning his drinking on the day of the trial would certainly

appear, however, to cast doubt upon the conclusion that he was without control

over his consumption of alcohol when he had sufficiently important reasons to

exercise such control. However that may be, there are more serious factual and

conceptual difficulties with reading this record to show that appellant wasunable to abstain from drinking. Dr. Wade testified that when appellant was

sober, the act of taking the first drink was a 'voluntary exercise of his will,' but

that this exercise of will was undertaken under the 'exceedingly strong

influence' of a 'compulsion' which was 'not completely overpowering.' Such

concepts, when juxtaposed in this fashion, have little meaning.

43 Moreover, Jellinek asserts that it cannot accurately be said that a person is truly

unable to abstain from drinking unless he is suffering the physical symptoms of withdrawal.12 There is no testimony in this record that Leroy Powell underwent

withdrawal symptoms either before he began the drinking spree which resulted

in the conviction under review here, or at any other time. In attempting to deal

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II.

with the alcoholic's desire for drink in the absence of withdrawal symptoms,

Jellinek is reduced to unintelligible distinctions between a 'compulsion' (a

'psychopathological phenomenon' which can apparently serve in some instances

as the functional equivalent of a 'craving' or symptom of withdrawal) and an

'impulse' (something which differs from a loss of control, a craving or a

compulsion, and to which Jellinek attributes the start of a new drinking bout for 

a 'gamma' alcoholic).13 Other scholars are equally unhelpful in articulating thenature of a 'compulsion.'14

44 It is one thing to say that if a man is deprived of alcohol his hands will begin to

shake, he will suffer agonizing pains and ultimately he will have hallucinations;

it is quite another to say that a man has a 'compulsion' to take a drink, but that

he also retains a certain amount of 'free will' with which to resist. It is simply

impossible, in the present state of our knowledge, to ascribe a useful meaning to

the latter statement. This definitional confusion reflects, of course, not merelythe undeveloped state of the psychiatric art but also the conceptual difficulties

inevitably attendant upon the importation of scientific and medical models into

a legal system generally predicated upon a different set of assumptions.15

45 Despite the comparatively primitive state of our knowledge on the subject, it

cannot be denied that the destructive use of alcoholic beverages is one of our  principal social and public health problems.16 The lowest current informed

estimate places the number of 'alcoholics' in America (definitional problems

aside) at 4,000,000,17 and most authorities are inclined to put the figure

considerably higher.18 The problem is compounded by the fact that a very large

 percentage of the alcoholics in this country are 'invisible'—they possess the

means to keep their drinking problems secret, and the traditionally uncharitable

attitude of our society toward alcoholics causes many of them to refrain from

seeking treatment from any source.19

 Nor can it be gainsaid that the legislativeresponse to this enormous problem has in general been inadequate.

46 There is as yet no known generally effective method for treating the vast

number of alcoholics in our society. Some individual alcoholics have responded

to particular forms of therapy with remissions of their symptomatic dependence

upon the drug. But just as there is no agreement among doctors and social

workers with respect to the causes of alcoholism, there is no consensus as to

why particular treatments have been effective in particular cases and there is nogenerally agreed-upon approach to the problem of treatment on a large scale.20

Most psychiatrists are apparently of the opinion that alcoholism is far more

difficult to treat than other forms of behavioral disorders, and some believe it is

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impossible to cure by means of psychotherapy; indeed, the medical profession

as a whole, and psychiatrists in particular, have been severely criticised for the

 prevailing reluctance to undertake the treatment of drinking problems.21 Thus it

is entirely possible that, even were the manpower and facilities available for a

full-scale attack upon chronic alcoholism, we would find ourselves unable to

help the vast bulk of our 'visible'—let alone our 'invisible'—alcoholic

 population.

47 However, facilities for the attempted treatment of indigent alcoholics are

woefully lacking throughout the country.22 It would be tragic to return large

numbers of helpless, sometimes dangerous and frequently unsanitary inebriates

to the streets of our cities without even the opportunity to sober up adequately

which a brief jail term provides. Presumably no State or city will tolerate such a

state of affairs. Yet the medical profession cannot, and does not, tell us with any

assurance that, even if the buildings, equipment and trained personnel weremade available, it could provide anything more than slightly higherclass jails

for our indigent habitual inebriates. Thus we run the grave risk that nothing will

 be accomplished beyond the hanging of a new sign reading 'hospital'—over one

wing of the jailhouse.23

48 One virtue of the criminal process is, at least, that the duration of penal

incarceration typically has some outside statutory limit; this is universally true

in the case of petty offenses, such as public drunkenness, where jail terms arequite short on the whole. 'Therapeutic civil commitment' lacks this feature; one

is typically committed until one is 'cured.' Thus, to do otherwise than affirm

might subject indigent alcoholics to the risk that they may be locked up for an

indefinite period of time under the same conditions as before, with no more

hope than before of receiving effective treatment and no prospect of periodic

'freedom.'24

49 Faced with this unpleasant reality, we are unable to assert that the use of thecriminal process as a means of dealing with the public aspects of problem

drinking can never be defended as rational. The picture of the penniless drunk 

 propelled aimlessly and endlessly through the law's 'revolving door' of arrest,

incarceration, release and re-arrest is not a pretty one. But before we condemn

the present practice across-the-board, perhaps we ought to be able to point to

some clear promise of a better world for these unfortunate people.

Unfortunately, no such promise has yet been forthcoming. If, in addition to the

absence of a coherent approach to the problem of treatment, we consider thealmost complete absence of facilities and manpower for the implementation of 

a rehabilitation program, it is difficult to say in the present context that the

criminal process is utterly lacking in social value. This Court has never held

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III.

that anything in the Constitution requires that penal sanctions be designed

solely to achieve therapeutic or rehabilitative effects, and it can hardly be said

with assurance that incarceration serves such purposes any better for the general

run of criminals than it does for public drunks.

50 Ignorance likewise impedes our assessment of the deterrent effect of criminal

sanctions for public drunkenness. The fact that a high percentage of Americanalcoholics conceal their drinking problems, not merely by avoiding public

displays of intoxication but also by shunning all forms of treatment, is

indicative that some powerful deterrent operates to inhibit the public revelation

of the existence of alcoholism. Quite probably this deterrent effect can be

largely attributed to the harsh moral attitude which our society has traditionally

taken toward intoxication and the shame which we have associated with

alcoholism. Criminal conviction represents the degrading public revelation of 

what Anglo-American society has long condemned as a moral defect, and theexistence of criminal sanctions may serve to reinforce this cultural taboo, just

as we presume it serves to reinforce other, stronger feelings against murder,

rape, theft, and other forms of antisocial conduct.

51 Obviously, chronic alcoholics have not been deterred from drinking to excess

 by the existence of criminal sanctions against public drunkenness. But all those

who violate penal laws of any kind are by definition undeterred. The

longstanding and still raging debate over the validity of the deterrence justification for penal sanctions has not reached any sufficiently clear 

conclusions to permit it to be said that such sanctions are ineffective in any

 particular context or for any particular group of people who are able to

appreciate the consequences of their acts. Certainly no effort was made at the

trial of this case, beyond a monosyllabic answer to a perfunctory one-line

question, to determine the effectiveness of penal sanctions in deterring Leroy

Powell in particular or chronic alcoholics in general from drinking at all or from

getting drunk in particular places or at particular times.

52 Appellant claims that his conviction on the facts of this case would violate the

Cruel and Unusual Punishment Clause of the Eighth Amendment as applied to

the States through the Fourteenth Amendment. The primary purpose of that

clause has always been considered, and properly so, to be directed at the

method or kind of punishment imposed for the violation of criminal statutes;the nature of the conduct made criminal is ordinarily relevant only to the fitness

of the punishment imposed. See, e.g., Trop v. Dulles, 356 U.S. 86, 78 S.Ct.

590, 2 L.Ed.2d 630 (1958); State of Louisiana ex rel. Francis v. Resweber, 329

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U.S. 459, 67 S.Ct. 374, 91 L.Ed. 422 (1947); Weems v. United States, 217 U.S.

349, 30 S.Ct. 544, 54 L.Ed. 793 (1910).25

53 Appellant, however, seeks to come within the application of the Cruel and

Unusual Punishment Clause announced in Robinson v. State of California, 370

U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), which involved a state statute

making it a crime to 'be addicted to the use of narcotics.' This Court held therethat 'a state law which imprisons a person thus afflicted (with narcotic

addiction) as a criminal, even though he has never touched any narcotic drug

within the State or been guilty of any irregular behavior there, inflicts a cruel

and unusual punishment * * *.' Id., at 667, 82 S.Ct., at 1420—1421.

54 On its face the present case does not fall within that holding, since appellant

was convicted, not for being a chronic alcoholic, but for being in public while

drunk on a particular occasion. The State of Texas thus has not sought to punisha mere status, as California did in Robinson; nor has it attempted to regulate

appellant's behavior in the privacy of his own home. Rather, it has imposed

upon appellant a criminal sanction for public behavior which may create

substantial health and safety hazards, both for appellant and for members of the

general public, and which offends the moral and esthetic sensibilities of a large

segment of the community. This seems a far cry from convicting one for being

an addict, being a chronic alcoholic, being 'mentally ill, or a leper * * *.' Id., at

666, 82 S.Ct., at 1420.

55 Robinson so viewed brings this Court but a very small way into the substantive

criminal law. And unless Robinson is so viewed it is difficult to see any

limiting principle that would serve to prevent this Court from becoming, under 

the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of 

the standards of criminal responsibility, in diverse areas of the criminal law,

throughout the country.

56 It is suggested in dissent that Robinson stands for the 'simple' but 'subtle'

 principle that '(c)riminal penalties may not be inflicted upon a person for being

in a condition he is powerless to change.' Post, at 567. In that view, appellant's

'condition' of public intoxication was 'occasioned by a compulsion symptomatic

of the disease' of chronic alcoholism, and thus, apparently, his behavior lacked

the critical element of mens rea. Whatever may be the merits of such a doctrine

of criminal responsibility, it surely cannot be said to follow from Robinson. The

entire thrust of Robinson's interpretation of the Cruel and Unusual Punishment

Clause is that criminal penalties may be inflicted only if the accused has

committed some act, has engaged in some behavior, which society has an

interest in preventing, or perhaps in historical common law terms, has

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committed some actus reus. It thus does not deal with the question of whether 

certain conduct cannot constitutionally be punished because it is, in some

sense, 'involuntary' or 'occasioned by a compulsion.'

57 Likewise, as the dissent acknowledges, there is a substantial definitional

distinction between a 'status,' as in Robinson, and a 'condition,' which is said to

 be involved in this case. Whatever may be the merits of an attempt todistinguish between behavior and a condition, it is perfectly clear that the

crucial element in this case, so far as the dissent is concerned, is whether or not

appellant can legally be held responsible for his appearance in public in a state

of intoxication. The only relevance of Robinson to this issue is that because the

Court interpreted the statute there involved as making a 'status' criminal, it was

able to suggest that the statute would cover even a situation in which addiction

had been acquired involuntarily. 370 U.S., at 667, n. 9, 82 S.Ct., at 1420. That

this factor was not determinative in the case is shown by the fact that there wasno indication of how Robinson himself had become an addict.

58 Ultimately, then, the most troubling aspects of this case, were Robinson to be

extended to meet it, would be the scope and content of what could only be a

constitutional doctrine of criminal responsibility. In dissent it is urged that the

decision could be limited to conduct which is 'a characteristic and involuntary

 part of the pattern of the disease as it afflicts' the particular individual, and that

'(i)t is not foreseeable' that it would be applied 'in the case of offenses such asdriving a car while intoxicated, assault, theft, or robbery.' Post, at 559, n. 2.

That is limitation by fiat. In the first place, nothing in the logic of the dissent

would limit its application to chronic alcoholics. If Leroy Powell cannot be

convicted of public intoxication, it is difficult to see how a State can convict an

individual for murder, if that individual, while exhibiting normal behavior in all

other respects, suffers from a 'compulsion' to kill, which is an 'exceedingly

strong influence,' but 'not completely overpowering.'26 Even if we limit our 

consideration to chronic alcoholics, it would seem impossible to confine the principle within the arbitrary bounds which the dissent seems to envision.

59 It is not difficult to imagine a case involving psychiatric testimony to the effect

that an individual suffers from some aggressive neurosis which he is able to

control when sober; that very little alcohol suffices to remove the inhibitions

which normally contain these aggressions, with the result that the individual

engages in assaultive behavior without becoming actually intoxicated; and that

the individual suffers from a very strong desire to drink, which is an'exceedingly strong influence' but 'not completely overpowering.' Without being

untrue to the rationale of this case, should the principles advanced in dissent be

accepted here, the Court could not avoid holding such an individual

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constitutionally unaccountable for his assaultive behavior.

60 Traditional common-law concepts of personal accountability and essential

considerations of federalism lead us to disagree with appellant. We are unable

to conclude, on the state of this record or on the current state of medical

knowledge, that chronic alcoholics in general, and Leroy Powell in particular,

suffer from such an irresistible compulsion to drink and to get drunk in publicthat they are utterly unable to control their performance of either or both of 

these acts and thus cannot be deterred at all from public intoxication. And in

any event this Court has never articulated a general constitutional doctrine of 

mens rea.27

61 We cannot cast aside the centuries-long evolution of the collection of 

interlocking and overlapping concepts which the common law has utilized to

assess the moral accountability of an individual for his antisocial deeds.28 Thedoctrines of actus reus, mens rea, insanity, mistake, justification, and duress

have historically provided the tools for a constantly shifting adjustment of the

tension between the evolving aims of the criminal law and changing religious,

moral, philosophical, and medical views of the nature of man. This process of 

adjustment has always been thought to be the province of the States.

62  Nothing could be less fruitful than for this Court to be impelled into defining

some sort of insanity test in constitutional terms. Yet, that task would seem to

follow inexorably from an extension of Robinson to this case. If a person in the

'condition' of being a chronic alcoholic cannot be criminally punished as a

constitutional matter for being drunk in public, it would seem to follow that a

 person who contends that, in terms of one test, 'his unlawful act was the

 product of mental disease or mental defect,' Durham v. United States, 94

U.S.App.D.C. 228, 241, 214 F.2d 862, 875, 45 A.L.R.2d 1430 (1954), would

state an issue of constitutional dimension with regard to his criminal

responsibility had he been tried under some different and perhaps lesser standard, e.g., the right-wrong test of M'Naghten's Case.29 The experimentation

of one jurisdiction in that field alone indicates the magnitude of the problem.

See, e.g., Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608 (1957);

Blocker v. United States, 107 U.S.App.D.C. 63, 274 F.2d 572 (1959); Blocker 

v. United States, 110 U.S.App.D.C. 41, 288 F.2d 853 (1961) (en banc);

McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962) (en

 banc); Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444

(1967). But formulating a constitutional rule would reduce, if not eliminate,that fruitful experimentation, and freeze the developing productive dialogue

 between law and psychiatry into a rigid constitutional mold. It is simply not yet

the time to write the Constitutional formulas cast in terms whose meaning, let

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I.

alone relevance, is not yet clear either to doctors or to lawyers.

63Affirmed.

64 Mr. Justice BLACK, whom Mr. Justice HARLAN joins, concurring.

65 While I agree that the grounds set forth in Mr. Justice MARSHALL's opinion

are sufficient to require affirmance of the judgment here, I wish to amplify my

reasons for concurring.

66 Those who favor the change now urged upon us rely on their own notions of 

the wisdom of this Texas law to erect a constitutional barrier, the desirability of 

which is far from clear. To adopt this position would significantly limit the

States in their efforts to deal with a widespread and important social problemand would do so by announcing a revolutionary doctrine of constitutional law

that would also tightly restrict state power to deal with a wide variety of other 

harmful conduct.

67 Those who favor holding that public drunkenness cannot be made a crime rely

to a large extent on their own notions of the wisdom of such a change in thelaw. A great deal of medical and sociological data is cited to us in support of 

this change. Stress is put upon the fact that medical authorities consider 

alcoholism a disease and have urged a variety of medical approaches to treating

it. It is pointed out that a high percentage of all arrests in America are for the

crime of public drunkenness and that the enforcement of these laws constitutes

a tremendous burden on the police. Then it is argued that there is no basis

whatever for claiming that to jail chronic alcoholics can be a deterrent or a

means of treatment; on the contrary, jail has, in the expert judgment of thesescientists, a destructive effect. All in all, these arguments read more like a

highly technical medical critique than an argument for deciding a question of 

constitutional law one way or another.

68 Of course, the desirability of this Texas statute should be irrelevant in a court

charged with the duty of interpretation rather than legislation, and that should

 be the end of the matter. But since proponents of this grave constitutional

change insist on offering their pronouncements on these questions of medicaldiagnosis and social policy, I am compelled to add that, should we follow their 

arguments, the Court would be venturing far beyond the realm of problems for 

which we are in a position to know what we are talking about.

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69 Public drunkenness has been a crime throughout our history, and even before

our history it was explicitly proscribed by a 1606 English statute, 4 Jac. 1, c. 5.

It is today made an offense in every State in the Union. The number of police to

 be assigned to enforcing these laws and the amount of time they should spend

in the effort would seem to me a question for each local community. Never,

even by the wildest stretch of this Court's judicial review power, could it be

thought that a State's criminal law could be struck down because the amount of time spent in enforcing it constituted, in some expert's opinion, a tremendous

 burden.

70 Jailing of chronic alcoholics is definitely defended as therapeutic, and the

claims of therapeutic value are not insubstantial. As appellee notes, the

alcoholics are removed from the streets, where in their intoxicated state they

may be in physical danger, and are given food, clothing, and shelter until they

'sober up' and thus at least regain their ability to keep from being run over byautomobiles in the street. Of course, this treatment may not be 'therapeutic' in

the sense of curing the underlying causes of their behavior, but it seems

 probable that the effect of jail on any criminal is seldom 'therapeutic' in this

sense, and in any case the medical authorities relied on so heavily by appellant

themselves stress that no generally effective method of curing alcoholics has

yet been discovered.

71 Apart from the value of jail as a form of treatment, jail serves other traditionalfunctions of the criminal law. For one thing, it gets the alcoholics off the street,

where they may cause harm in a number of ways to a number of people, and

isolation of the dangerous has always been considered an important function of 

the criminal law. In addition, punishment of chronic alcoholics can serve

several deterrent functions—it can give potential alcoholics an additional

incentive to control their drinking, and it may, even in the case of the chronic

alcoholic, strengthen his incentive to control the frequency and location of his

drinking experiences.

72 These values served by criminal punishment assume even greater significance

in light of the available alternatives for dealing with the problem of alcoholism.

Civil commitment facilities may not be any better than the jails they would

replace. In addition, compulsory commitment can hardly be considered a less

severe penalty from the alcoholic's point of view. The commitment period will

 presumably be at least as long, and it might in fact be longer since commitment

often lasts until the 'sick' person is cured. And compulsory commitment wouldof course carry with it a social stigma little different in practice from that

associated with drunkenness when it is labeled a 'crime.'

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II.

III.

73 Even the medical authorities stress the need for continued experimentation with

a variety of approaches. I cannot say that the States should be totally barred

from one avenue of experimentation, the criminal process, in attempting to find

a means to cope with this difficult social problem. From what I have been able

to learn about the subject, it seems to me that the present use of criminal

sanctions might possibly be unwise, but I am by no means convinced that any

use of criminal sanctions would inevitably be unwise or, above all, that I am

qualified in this area to know what is legislatively wise and what is legislatively

unwise.

74 I agree with Mr. Justice MARSHALL that the findings of fact in this case are

inadequate to justify the sweeping constitutional rule urged upon us. I could

not, however, consider any findings that could be made with respect to'voluntariness' or 'compulsion' controlling on the question whether a specific

instance of human behavior should be immune from punishment as a

constitutional matter. When we say that appellant's appearance in public is

caused not by 'his own' volition but rather by some other force, we are clearly

thinking of a force that is nevertheless 'his' except in some special sense.1 The

accused undoubtedly commits the proscribed act and the only question is

whether the act can be attributed to a part of 'his' personality that should not be

regarded as criminally responsible. Almost all of the traditional purposes of thecriminal law can be significantly served by punishing the person who in fact

committed the proscribed act, without regard to whether his action was

'compelled' by some elusive 'irresponsible' aspect of his personality. As I have

already indicated, punishment of such a defendant can clearly be justified in

terms of deterrence, isolation, and treatment. On the other hand, medical

decisions concerning the use of a term such as 'disease' or 'volition,' based as

they are on the clinical problems of diagnosis and treatment, bear no necessary

correspondence to the legal decision whether the overall objectives of thecriminal law can be furthered by imposing punishment. For these reasons,

much as I think that criminal sanctions should in many situations be applied

only to those whose conduct is morally blameworthy, see Morissette v. United

States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), I cannot think the

States should be held constitutionally required to make the inquiry as to what

 part of a defendant's personality is responsible for his actions and to excuse

anyone whose action was, in some complex, psychological sense, the result of a

'compulsion.'2

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75 The rule of constitutional law urged by appellant is not required by Robinson v.

State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). In that

case we held that a person could not be punished for the mere status of being a

narcotics addict. We explicitly limited our holding to the situation where no

conduct of any kind is involved, stating:

76 'We hold that a state law which imprisons a person thus afflicted as a criminal,

even though he has never touched any narcotic drug within the State or been

guilty of any irregular behavior there, inflicts a cruel and unusual punishment in

violation of the Fourteenth Amendment.' 370 U.S., at 667, 82 S.Ct. at 1420.

(Emphasis added.)

77 The argument is made that appellant comes within the terms of our holding in

Robinson because being drunk in public is a mere status or 'condition.' Despitethis many-faceted use of the concept of 'condition,' this argument would require

converting Robinson into a case protecting actual behavior, a step we explicitly

refused to take in that decision.

78 A different question, I admit, is whether our attempt in Robinson to limit our 

holding to pure status crimes, involving no conduct whatever, was a sound one.

I believe it was. Although some of our objections to the statute in Robinson are

equally applicable to statutes that punish conduct 'symptomatic' of a disease,any attempt to explain Robinson as based solely on the lack of voluntariness

encounters a number of logical difficulties.3 Other problems raised by status

crimes are in no way involved when the State attempts to punish for conduct,

and these other problems were, in my view, the controlling aspects of our 

decision.

79 Punishment for a status is particularly obnoxious, and in many instances can

reasonably be called cruel and unusual, because it involves punishment for amere propensity, a desire to commit an offense; the mental element is not

simply one part of the crime but may constitute all of it. This is a situation

universally sought to be avoided in our criminal law; the fundamental

requirement that some action be proved is solidly established even for offenses

most heavily based on propensity, such as attempt, conspiracy, and recidivist

crimes.4 In fact, one eminent authority has found only one isolated instance, in

all of Anglo-American jurisprudence, in which criminal responsibility was

imposed in the absence of any act at all.5

80 The reasons for this refusal to permit conviction without proof of an act are

difficult to spell out, but they are nonetheless perceived and universally

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IV.

expressed in our criminal law. Evidence of propensity can be considered

relatively unreliable and more difficult for a defendant to rebut; the requirement

of a specific act thus provides some protection against false charges. See 4

Blackstone, Commentaries 21. Perhaps more fundamental is the difficulty of 

distinguishing, in the absence of any conduct, between desires of the day-dream

variety and fixed intentions that may pose a real threat to society; extending the

criminal law to cover both types of desire would be unthinkable, since '(t)herecan hardly be anyone who has never thought evil. When a desire is inhibited it

may find expression in fantasy; but it would be absurd to condemn this natural

 psychological mechanism as illegal.'6

81 In contrast, crimes that require the State to prove that the defendant actually

committed some proscribed act involve none of these special problems. In

addition, the question whether an act is 'involuntary' is, as I have already

indicated, an inherently elusive question, and one which the State may, for good reasons, wish to regard as irrelevant. In light of all these considerations,

our limitation of our Robinson holding to pure status crimes seems to me

entirely proper.

82 The rule of constitutional law urged upon us by appellant would have a

revolutionary impact on the criminal law, and any possible limits proposed for the rule would be wholly illusory. If the original boundaries of Robinson are to

 be discarded, any new limits too would soon fall by the wayside and the Court

would be forced to hold the States powerless to punish any conduct that could

 be shown to result from a 'compulsion,' in the complex, psychological meaning

of that term. The result, to choose just one illustration, would be to require

recognition of 'irresistible impulse' as a complete defense to any crime; this is

 probably contrary to present law in most American jurisdictions.7

83 The real reach of any such decision, however, would be broader still, for the

 basic premise underlying the argument is that it is cruel and unusual to punish a

 person who is not morally blameworthy. I state the proposition in this

sympathetic way because I feel there is much to be said for avoiding the use of 

criminal sanctions in many such situations. See Morissette v. United States,

supra. But the question here is one of constitutional law. The legislatures have

always been allowed wide freedom to determine the extent to which moral

culpability should be a prerequisite to conviction of a crime. E.g., United Statesv. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). The criminal

law is a social tool that is employed in seeking a wide variety of goals, and I

cannot say the Eighth Amendment's limits on the use of criminal sanctions

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V.

extend as far as this viewpoint would inevitably carry them.

84 But even if we were to limit any holding in this field to 'compulsions' that are

'symptomatic' of a 'disease,' in the words of the findings of the trial court, the

sweep of that holding would still be startling. Such a ruling would make it clear 

 beyond any doubt that a narcotics addict could not be punished for 'being' in

 possession of drugs or, for that matter, for 'being' guilty of using them. A widevariety of sex offenders would be immune from punishment if they could show

that their conduct was not voluntary but part of the pattern of a disease. More

generally speaking, a form of the insanity defense would be made a

constitutional requirement throughout the Nation, should the Court now hold it

cruel and unusual to punish a person afflicted with any mental disease

whenever his conduct was part of the pattern of his disease and occasioned by a

compulsion symptomatic of the disease. Such a holding would appear to

overrule Leland v. State of Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302(1952), where the majority opinion and the dissenting opinion in which I joined

 both stressed the indefensibility of imposing on the States any particular test of 

criminal responsibility. Id., at 800—801, 72 S.Ct., at 1008—1009; id., at 803,

72 S.Ct. at 1009 (Frankfurter, J., dissenting).

85 The impact of the holding urged upon us would, of course, be greatest in those

States which have until now refused to accept any qualifications to the 'right

from wrong' test of insanity; apparently at least 30 States fall into thiscategory.8 But even in States which have recognized insanity defenses similar 

to the proposed new constitutional rule, or where comparable defenses could be

 presented in terms of the requirement of a guilty mind (mens rea), the proposed

new constitutional rule would be devastating, for constitutional questions

would be raised by every state effort to regulate the admissibility of evidence

relating to 'disease' and 'compulsion,' and by every state attempt to explain these

concepts in instructions to the jury. The test urged would make it necessary to

determine, not only what constitutes a 'disease,' but also what is the 'pattern' of the disease, what 'conditions' are 'part' of the pattern, what parts of this pattern

result from a 'compulsion,' and finally which of these compulsions are

'symptomatic' of the disease. The resulting confusion and uncertainty could

easily surpass that experienced by the District of Columbia Circuit in

attempting to give content to its similar, though somewhat less complicated, test

of insanity.9 The range of problems created would seem totally beyond our 

capacity to settle at all, much less to settle wisely, and even the attempt to

define these terms and thus to impose constitutional and doctrinal rigidityseems absurd in an area where our understanding is even today so incomplete.

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86 Perceptive students of history at an early date learned that one country

controlling another could do a more successful job if it permitted the latter to

keep in force the laws and rules of conduct which it had adopted for itself.

When our Nation was created by the Constitution of 1789, many people feared

that the 13 straggling, struggling States along the Atlantic composed too great

an area ever to be controlled from one central point. As the years went on,

however, the Nation crept cautiously westward until it reached the PacificOcean and finally the National planted its flag on the far-distant Islands of 

Hawaii and on the frozen peaks of Alaska. During all this period the Nation

remembered that it could be more tranquil and orderly if it functioned on the

 principle that the local communities should control their own peculiarly local

affairs under their own local rules.

87 This Court is urged to forget that lesson today. We are asked to tell the most-

distant Islands of Hawaii that they cannot apply their local rules so as to protecta drunken man on their beaches and the local communities of Alaska that they

are without power to follow their own course in deciding what is the best way

to take care of a drunken man on their frozen soil. This Court, instead of 

recognizing that the experience of human beings is the best way to make laws,

is asked to set itself up as a board of Platonic Guardians to establish rigid

 binding rules upon every small community in this large Nation for the control

of the unfortunate people who fall victim to drunkenness. It is always time to

say that this Nation is too large, too complex and composed of too great adiversity of peoples for any one of us to have the wisdom to establish the rules

 by which local Americans must govern their local affairs. The constitutional

rule we are urged to adopt is not merely revolutionary—it departs from the

ancient faith based on the premise that experience in making local laws by local

 people themselves is by far the safest guide for a nation like ours to follow. I

suspect this is a most propitious time to remember the words of the late Judge

Learned Hand, who so wisely said:

88 'For myself it would be most irksome to be ruled by a bevy of Platonic

Guardians, even if I knew how to choose them, which I assuredly do not.' L.

Hand, The Bill of Rights 73 (1958).

89 I would confess the limits of my own ability to answer the age-old questions of 

the criminal law's ethical foundations and practical effectiveness. I would hold

that Robinson v. State of California establishes a firm and impenetrable barrier 

to the punishment of persons who, whatever their bare desires and propensities,have committed no proscribed wrongful act. But I would refuse to plunge from

the concrete and almost universally recognized premises of Robinson into the

murky problems raised by the insistence that chronic alcoholics cannot be

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 punished for public drunkenness, problems that no person, whether layman or 

expert, can claim to understand, and with consequences that no one can safely

 predict. I join in affirmance of this conviction.

90 Mr. Justice WHITE, concurring in the result.

91 If it cannot be a crime to have an irresistible compulsion to use narcotics,

Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758,

rehearing denied, 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962), I do not

see how it can constitutionally be a crime to yield to such a compulsion.

Punishing an addict for using drugs convicts for addiction under a different

name. Distinguishing between the two crimes is like forbidding criminal

conviction for being sick with flu or epilepsy but permitting punishment for 

running a fever or having a convulsion. Unless Robinson is to be abandoned,

the use of narcotics by an addict must be beyond the reach of the criminal law.Similarly, the chronic alcoholic with an irresistible urge to consume alcohol

should not be punishable for drinking or for being drunk.

92 Powell's conviction was for the different crime of being drunk in a public place.

Thus even if Powell was compelled to drink, and so could not constitutionally

 be convicted for drinking, his conviction in this case can be invalidated only if 

there is a constitutional basis for saying that he may not be punished for being

in public while drunk. The statute involved here, which aims at keeping drunks

off the street for their own welfare and that of others, is not challenged on the

ground that it interferes unconstitutionally with the right to frequent public

 places. No question is raised about applying this statute to the nonchronic

drunk, who has no compulsion to drink, who need not drink to excess, and who

could have arranged to do his drinking in private or, if he began drinking in

 public, could have removed himself at an appropriate point on the path toward

complete inebriation.

93 The trial court said that Powell was a chronic alcoholic with a compulsion not

only to drink to excess but also to frequent public places when intoxicated.

 Nothing in the record before the trial court supports the latter conclusion, which

is contrary to common sense and to common knowledge.1 The sober chronic

alcoholic has no compulsion to be on the public streets; many chronic

alcoholics drink at home and are never seen drunk in public. Before and after 

taking the first drink, and until he becomes so drunk that he loses the power to

know where he is or to direct his movements, the chronic alcoholic with a

home or financial resources is as capable as the nonchronic drinker of doing his

drinking in private, of removing himself from public places and, since he knows

or ought to know that he will become intoxicated, of making plans to avoid his

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 being found drunk in public. For these reasons, I cannot say that the chronic

alcoholic who proves his disease and a compulsion to drink is shielded from

conviction when he has knowingly failed to take feasible precautions against

committing a criminal act, here the act of going to or remaining in a public

 place. On such facts the alcoholic is like a person with smallpox, who could be

convicted for being on the street but not for being ill, or, like the epileptic, who

would be punished for driving a car but not for his disease.2

94 The fact remains that some chronic alcoholics must drink and hence must drink 

somewhere.3 Although many chronics have homes, many others do not. For all

 practical purposes the public streets may be home for these unfortunates, not

 because their disease compels them to be there, but because, drunk or sober,

they have no place else to go and no place else to be when they are drinking.

This is more a function of economic station than of disease, although the

disease may lead to destitution and perpetuate that condition. For some of thesealcoholics I would think a showing could be made that resisting drunkenness is

impossible and that avoiding public places when intoxicated is also impossible.

As applied to them this statute is in effect a law which bans a single act for 

which they may not be convicted under the Eighth Amendment—the act of 

getting drunk.

95 It is also possible that the chronic alcoholic who begins drinking in private at

some point becomes so drunk that he loses the power to control his movementsand for that reason appears in public. The Eighth Amendment might also forbid

conviction in such circumstances, but only on a record satisfactorily showing

that it was not feasible for him to have made arrangements to prevent his being

in public when drunk and that his extreme drunkenness sufficiently deprived

him of his faculties on the occasion in issue.

96 These prerequisites to the possible invocation of the Eighth Amendment are not

satisfied on the record before us.4 Whether or not Powell established that hecould not have resisted becoming drunk on December 19, 1966, nothing in the

record indicates that he could not have done his drinking in private or that he

was so inebriated at the time that he had lost control of his movements and

wandered into the public street. Indeed, the evidence in the record strongly

suggests that Powell could have drunk at home and made plans while sober to

 prevent ending up in a public place. Powell had a home and wife, and if there

were reasons why he had to drink in public or be drunk there, they do not

appear in the record.

97 Also, the only evidence bearing on Powell's condition at the time of his arrest

was the testimony of the arresting officer that appellant staggered, smelled of 

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alcohol, and was 'very drunk.' Powell testified that he had no clear recollection

of the situation at the time of his arrest. His testimony about his usual condition

when drunk is no substitute for evidence about his condition at the time of his

arrest. Neither in the medical testimony nor elsewhere is there any indication

that Powell had reached such a state of intoxication that he had lost the ability

to comprehend what he was doing or where he was. For all we know from this

record, Powell at the time knew precisely where he was, retained the power tostay off or leave the streets, and simply preferred to be there rather than

elsewhere.

98 It is unnecessary to pursue at this point the further definition of the

circumstances or the state of intoxication which might bar conviction of a

chronic alcoholic for being drunk in a public place. For the purposes of this

case, it is necessary to say only that Powell showed nothing more than that he

was to some degree compelled to drink and that he was drunk at the time of hisarrest. He made no showing that he was unable to stay off the streets on the

night in question.5

99 Because Powell did not show that his conviction offended the Constitution, I

concur in the judgment affirming the Travis County court.

100 Mr. Justice FORTAS, with whom Mr. Justice DOUGLAS, Mr. Justice

BRENNAN, and Mr. Justice STEWART join, dissenting.

101 Appellant was charged with being found in a state of intoxication in a public

 place. This is a violation of Article 477 of the Texas Penal Code, which reads

as follows:

102 'Whoever shall get drunk or be found in a state of intoxication in any public

 place, or at any private house except his own, shall be fined not exceeding onehundred dollars.'

103 Appellant was tried in the Corporation Court of Austin, Texas. He was found

guilty and fined $20. He appealed to the County Court at Law No. 1 of Travis

County, Texas, where a trial de novo was held. Appellant was defended by

counsel who urged that appellant was 'afflicted with the disease of chronic

alcoholism which has destroyed the power of his will to resist the constant,

excessive consumption of alcohol; his appearance in public in that condition isnot of his own volition, but a compulsion symptomatic of the disease of chronic

alcoholism.' Counsel contended that to penalize appellant for public

intoxication would be to inflict upon him cruel and unusual punishment, in

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violation of the Eighth and Fourteenth Amendments to the United States

Constitution.

104 At the trial in the county court, the arresting officer testified that he had

observed appellant in the 2000 block of Hamilton Street in Austin; that

appellant staggered when he walked; that his speech was slurred; and that he

smelled strongly of alcohol. He was not loud or boisterous; he did not resistarrest; he was cooperative with the officer.

105 The defense established that appellant had been convicted of public intoxication

approximately 100 times since 1949, primarily in Travis County, Texas. The

circumstances were always the same: the 'subject smelled strongly of alcoholic

 beverages, staggered when walking, speech incoherent.' At the end of the

 proceedings, he would be fined: 'down in Bastrop County, it's $25.00 down

there, and its $20.00 up here (in Travis County).' Appellant was usually unableto pay the fines imposed for these offenses, and therefore usually has been

obliged to work the fines off in jail. The statutory rate for working off such

fines in Texas is one day in jail for each $5 of fine unpaid. Texas Code

Crim.Proc., Art. 43.09.

106 Appellant took the stand. He testified that he works at a tavern shining shoes.

He makes about $12 a week which he uses to buy wine. He has a family, but he

does not contribute to its support. He drinks wine every day. He gets drunk 

about once a week. When he gets drunk, he usually goes to sleep, 'mostly' in

 public places such as the sidewalk. He does not disturb the peace or interfere

with others.

107 The defense called as a witness Dr. David Wade, a Fellow of the American

Medical Association and a former President of the Texas Medical Association.

Dr. Wade is a qualified doctor of medicine, duly certificated in psychiatry. He

has been engaged in the practice of psychiatry for more than 20 years. During

all of that time he has been especially interested in the problem of alcoholism.

He has treated alcoholics; lectured and written on the subject; and has observed

the work of various institutions in treating alcoholism. Dr. Wade testified that

he had observed and interviewed the appellant. He said that appellant has a

history of excessive drinking dating back to his early years; that appellant

drinks only wine and beer; that 'he rarely passes a week without going on an

alcoholic binge'; that 'his consumption of alcohol is limited only by his

finances, and when he is broke, he makes an effort to secure alcohol by getting

his friends to buy alcohol for him'; that he buys a 'fifty cent bottle' of wine,

always with the thought that this is all he will drink; but that he ends by

drinking all he can buy until he 'is * * * passed out in some joint or out on the

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sidewalk.' According to Dr. Wade, appellant 'has never engaged in any activity

that is destructive to society or to anyone except himself.' He has never received

medical or psychiatric treatment for his drinking problem. He has never been

referred to Alcoholics Anonymous, a voluntary association for helping

alcoholics, nor has he ever been sent to the State Hospital.

108 Dr. Wade's conclusion was that 'Leroy Powell is an alcoholic and that hisalcoholism is in a chronic stage.' Although the doctor responded affirmatively

to a question as to whether the appellant's taking the first drink on any given

occasion is 'a voluntary exercise of will,' his testimony was that 'we must take

into account' the fact that chronic alcoholics have a 'compulsion' to drink which

'while not completely overpowering, is a very strong influence, an exceedingly

strong influence,' and that this compulsion is coupled with the 'firm belief in

their mind that they are going to be able to handle it from now on.' It was also

Dr. Wade's opinion that appellant 'has an uncontrollable compulsion to drink'and that he 'does not have the willpower (to resist the constant excessive

consumption of alcohol or to avoid appearing in public when intoxicated) nor 

has he been given medical treatment to enable him to develop this willpower.'

109 The trial judge in the county court, sitting without a jury, made the following

findings of fact:

110 '(1) That chronic alcoholism is a disease which destroys the afflicted person's

will power to resist the constant, excessive consumption of alcohol.

111 '(2) That a chronic alcoholic does not appear in public by his own volition but

under a compulsion symptomatic of the disease of chronic alcoholism.

112 '(3) That Leroy Powell, defendant herein, is a chronic alcoholic who is afflicted

with the disease cf chronic alcoholism.'1

113 The court then rejected appellant's constitutional defense, entering the

following conclusion of law:

114 '(1) The fact that a person is a chronic alcoholic afflicted with the disease of 

chronic alcoholism, is not a defense to being charged with the offense of getting

drunk or being found in a state of intoxication in any public place under Art.

477 of the Texas Penal Code.'

115 The court found appellant guilty as charged and increased his fine to $50.

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I.

II.

Appellant did not have the right to appeal further within the Texas judicial

system. Tex.Code Crim.Proc., Art. 4.03. He filed a jurisdictional statement in

this Court.

116 The issue posed in this case is a narrow one. There is no challenge here to thevalidity of public intoxication statutes in general or to the Texas public

intoxication statute in particular. This case does not concern the infliction of 

 punishment upon the 'social' drinker—or upon anyone other than a 'chronic

alcoholic' who, as the trier of fact here found, cannot 'resist the constant,

excessive consumption of alcohol.' Nor does it relate to any offense other than

the crime of public intoxication.

117 The sole question presented is whether a criminal penalty may be imposedupon a person suffering the disease of 'chronic alcoholism' for a condition— 

 being 'in a state of intoxication' in public—which is a characteristic part of the

 pattern of his disease and which, the trial court found, was not the consequence

of appellant's volition but of 'a compulsion symptomatic of the disease of 

chronic alcoholism.' We must consider whether the Eighth Amendment, made

applicable to the States through the Fourteenth Amendment, prohibits the

imposition of this penalty in these rather special circumstances as 'cruel and

unusual punishment.' This case does not raise any question as to the right of the police to stop and detain those who are intoxicated in public, whether as a

result of the disease or otherwise; or as to the State's power to commit chronic

alcoholics for treatment. Nor does it concern the responsibility of an alcoholic

for criminal acts. We deal here with the mere condition of being intoxicated in

 public.2

118 As I shall discuss, consideration of the Eighth Amendment issue in this case

requires an understanding of 'the disease of chronic alcoholism' with which, as

the trial court found, appellant is afflicted, which has destroyed his 'will power 

to resist the constant, excessive consumption of alcohol,' and which leads him

to 'appear in public (not) by his own volition but under a compulsion

symptomatic of the disease of chronic alcoholism.' It is true, of course, that

there is a great deal that remains to be discovered about chronic alcoholism.

Although many aspects of the disease remain obscure, there are some hard facts —medical and, especially, legal facts—that are accessible to us and that

 provide a context in which the instant case may be analyzed. We are similarly

woefully deficient in our medical, diagnostic, and therapeutic knowledge of 

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mental disease and the problem of insanity; but few would urge that, because of 

this, we should totally reject the legal significance of what we do know about

these phenomena.

119 Alcoholism3 is a major problem in the United States.4 In 1956 the American

Medical Association for the first time designated alcoholism as a major medical

 problem and urged that alcoholics be admitted to general hospitals for care.5

This significant development marked the acceptance among the medical

 profession of the 'disease concept of alcoholism.'6 Although there is some

 problem in defining the concept, its core meaning, as agreed by authorities, is

that alcoholism is caused and maintained by something other than the moral

fault of the alcoholic, something that, to a greater or lesser extent depending

upon the physiological or psychological makeup and history of the individual,

cannot be controlled by him. Today most alcohologists and qualified members

of the medical profession recognize the validity of this concept. Recent yearshave seen an intensification of medical interest in the subject.7 Medical groups

have become active in educating the public, medical schools, and physicians in

the etiology, diagnosis, and treatment of alcoholism.8

120 Authorities have recognized that a number of factors may contribute to

alcoholism. Some studies have pointed to physiological influences, such as

vitamin deficiency, hormone imbalance, abnormal metabolism, and hereditary

 proclivity. Other researchers have found more convincing a psychologicalapproach, emphasizing early environment and underlying conflicts and

tensions. Numerous studies have indicated the influence of sociocultural

factors. It has been shown for example, that the incidence of alcoholism among

certain ethnic groups is far higher than among others.9

121 The manifestations of alcoholism are reasonably well identified. The late E. M.

Jellinek, an eminent alcohologist, has described five discrete types commonly

found among American alcoholics.10 It is well established that alcohol may behabituative and 'can be physically addicting.'11 It has been said that 'the main

 point for the nonprofessional is that alcoholism is not within the control of the

 person involved. He is not willfully drinking.'12

122 Although the treatment of alcoholics has been successful in many cases,13

 physicians have been unable to discover any single treatment method that will

invariably produce satisfactory results. A recent study of available treatment

facilities concludes as follows:14

123 'Although numerous kinds of therapy and intervention appear to have been

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effective with various kinds of problem drinkers, the process of matching

 patient and treatment method is not yet highly developed. There is an urgent

need for continued experimentation, for modifying and improving existing

treatment methods, for developing new ones, and for careful and well-designed

evaluative studies. Most of the facilities that provide services for alcoholics

have made little, if any, attempt to determine the effectiveness of the total

 program or of its components.'

124 Present services for alcoholics include state and general hospitals, separate state

alcoholism programs, outpatient clinics, community health centers, general

 practitioners, and private psychiatric facilities.15 Self-help organizations, such

as Alcoholics Anonymous, also aid in treatment andrehabilitation.16

125 The consequences of treating alcoholics, under the public intoxication laws, as

criminals can be identified with more specificity. Public drunkenness is punished as a crime, under a variety of laws and ordinances, in every State of 

the Union.17 The Task Force on Drunkenness of the President's Commission on

Law Enforcement and Administration of Justice has reported that '(t)wo million

arrests in 1965—one of every three arrests in America—were for the offense of 

 public drunkenness.'18 Drunkenness offenders make up a large percentage of 

the population in short-term penal institutions.19 Their arrest and processing

 place a tremendous burden upon the police, who are called upon to spend a

large amount of time in arresting for public intoxication and in appearing attrials for public intoxication, and upon the entire criminal process.20

126 It is not known how many drunkenness offenders are chronic alcoholics, but

'(t)here is strong evidence * * * that a large number of those who are arrested

have a lengthy history of prior drunkenness arrests.'21 'There are instances of 

the same person being arrested as many as forty times in a single year on

charges of drunkenness, and every large urban center can point to cases of 

individuals appearing before the courts on such charges 125, 150, or even 200times in the course of a somewhat longer period.'22

127 It is entirely clear that the jailing of chronic alcoholics is punishment. It is not

defended as therapeutic, nor is there any basis for claiming that it is therapeutic

(or indeed a deterrent). The alcoholic offender is caught in a 'revolving door'— 

leading from arrest on the street through a brief, unprofitable sojourn in jail,

 back to the street and, eventually, another arrest.23 The jails, overcrowded and

 put to a use for which they are not suitable, have a destructive effect upon

alcoholic inmates.24

128 Finall most commentators as well as ex erienced ud es 25 are in a reement

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III

, , ,

that 'there is probably no drearier example of the futility of using penal

sanctions to solve a psychiatric problem than the enforcement of the laws

against drunkenness.'26

129 'If all of this effort, all of this investment of time and money, were producing

constructive results, then we might find satisfaction in the situation despite its

costs. But the fact is that this activity accomplishes little that is fundamental.

 No one can seriously suggest that the threat of fines and jail sentences actually

deters habitual drunkenness or alcoholic addiction. * * * Nor, despite the heroic

efforts being made in a few localities, is there much reason to suppose that any

very effective measures of cure and therapy can or will be administered in the

 jails. But the weary process continues, to the detriment of the total performance

of the law-enforcement function.'27

130 It bears emphasis that these data provide only a context for consideration of the

instant case. They should not dictate our conclusion. The questions for this

Court are not settled by reference to medicine or penology. Our task is to

determine whether the principles embodied in the Constitution of the United

States place any limitations upon the circumstances under which punishment

may be inflicted, and, if so, whether, in the case now before us, those principles

 preclude the imposition of such punishment.

131 It is settled that the Federal Constitution places some substantive limitation

upon the power of state legislatures to define crimes for which the imposition

of punishment is ordered. In Robinson v. State of California, 370 U.S. 660, 82

S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Court considered a conviction under a

California statute making it a criminal offense for a person '(t)o be addicted to

the use of narcotics.' At Robinson's trial, it was developed that the defendant

had been a user of narcotics. The trial court instructed the jury that 'to be

addicted to the use of narcotics is said to be a status or condition and not an act.

It is a continuing offense and differs from most other offenses in the fact that

(it) is chronic rather than acute; that it continues after it is complete and

subjects the offender to arrest at any time before he reforms.' 370 U.S., at 662

 —663, 82 S.Ct., at 1418.

132 This Court reversed Robinson's conviction on the ground that punishment under 

the law in question was cruel and unusual, in violation of the Eighth

Amendment of the Constitution as applied to the States through the Fourteenth

Amendment. The Court noted that narcotic addiction is considered to be an

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illness and that California had recognized it as such. It held that the State could

not make it a crime for a person to be ill.28 Although Robinson had been

sentenced to only 90 days in prison for his offense, it was beyond the power of 

the State to prescribe such punishment. As Mr. Justice STEWART, speaking

for the Court, said: '(e)ven one day in prison would be a cruel and unusual

 punishment for the 'crime' of having a common cold.' 370 U.S., at 667, 82

S.Ct., at 1421.

133 Robinson stands upon a principle which, despite its sublety, must be simply

stated and respectfully applied because it is the foundation of individual liberty

and the cornerstone of the relations between a civilized state and its citizens:

Criminal penalties may not be inflicted upon a person for being in a condition

he is powerless to change. In all probability, Robinson at some time before his

conviction elected to tak narcotics. But the crime as defined did not punish this

conduct.29 The statute imposed a penalty for the offense of 'addiction'—acondition which Robinson could not control. Once Robinson had become an

addict, he was utterly powerless to avoid criminal guilt. He was powerless to

choose not to violate the law.

134 In the present case, appellant is charged with a crime composed of two

elements—being intoxicated and being found in a public place while in that

condition. The crime, so defined, differs from that in Robinson. The statute

covers more than a mere status.30 But the essential constitutional defect here isthe same as in Robinson, for in both cases the particular defendant was accused

of being in a condition which he had no capacity to change or avoid. The trial

 judge sitting as trier of fact found upon the medical and other relevant

testimony, that Powell is a 'chronic alcoholic.' He defined appellant's 'chronic

alcoholism' as 'a disease which destroys the afflicted person's will power to

resist the constant, excessive consumption of alcohol.' He also found that 'a

chronic alcoholic does not appear in public by his own volition but under a

compulsion symptomatic of the disease of chronic alcoholism.' I read thesefindings to mean that appellant was powerless to avoid drinking; that having

taken his first drink, he had 'an uncontrollable compulsion to drink' to the point

of intoxication; and that, once intoxicated, he could not prevent himself from

appearing in public places.31

135 Article 477 of the Texas Penal Code is specifically directed to the accused's

 presence while in a state of intoxication, 'in any public place, or at any private

house except his own.' This is the essence of the crime. Ordinarily when theState proves such presence in a state of intoxication, this will be sufficient for 

conviction, and the punishment prescribed by the State may, of course, b

validly imposed. But here the findings of the trial judge call into play the

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Vernon's Ann.Tex.Code Crim.Proc., Art. 4.03 (1966).

E. Jellinek, The Disease Concept of Alcoholism 11 (1960).

Id., at 12 (emphasis in original).

See, e.g., Joint Information Serv. of the Am. Psychiatric Assn. & the Nat. Assn.

for Mental Health, The Treatment of Alcoholism—A Study of Programs and

Problems 6—8 (1967) (hereafter cited as Treatment of Alcoholism).

Jellinek, supra, n. 2, at 35—41.

For example, in nations where large quantities of wine are customarily

consumed with meals, apparently there are many people who are completelyunaware that they have a 'drinking problem' they rarely if ever show signs of 

intoxication, they display no marked symptoms of behavioral disorder, and are

entirely capable of limiting their alcoholic intake to a reasonable amount—and

 principle that a person may not be punished if the condition essential to

constitute the defined crime is part of the pattern of his disease and is

occasioned by a compulsion symptomatic of the disease. This principle, narrow

in scope and applicability, is implemented by the Eighth Amendment's

 prohibition of 'cruel and unusual punishment,' as we construed that command in

Robinson. It is true that the command of the Eighth Amendment and its

antecedent provision in the Bill of Rights of 1689 were initially directed to thetype and degree of punishment inflicted.32 But in Robinson we recognized that

'the principle that would deny power to exact capital punishment for a petty

crime would also deny power to punish a person by fine or imprisonment for 

 being sick.' 370 U.S., at 676, 82 S.Ct., at 1425 (Mr. Justice DOUGLAS,

concurring.)33

136 The findings in this case, read against the background of the medical and

sociological data to which I have referred, compel the conclusion that theinfliction upon appellant of a criminal penalty for being intoxicated in a public

 place would be 'cruel and inhuman punishment' within the prohibition of the

Eighth Amendment. This conclusion follows because appellant is a 'chronic

alcoholic' who, according to the trier of fact, cannot resist the 'constant

excessive consumption of alcohol' and does not appear in public by his own

volition but under a compulsion' which is part of his condition.

137 I would reverse the judgment below.

1

2

3

4

5

6

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yet who display severe withdrawal symptoms, sometim